The 4-4 decision leaves laws in place in 25 states and the District of Columbia that allow unions to require non-union members to pay "agency fees" to support the union's collective-bargaining work. Nine California teachers challenged this arrangement as a violation of their First Amendment rights. The plaintiffs have opted-out of paying for the union's political campaign activity, but object to paying for collective-bargaining work because they say that is also political.

"With the death of Justice Scalia, this outcome was not unexpected," said Terry Pell, the president of the Center for Individual Rights (CIR) in Washington, D.C. CIR brought the Friedrichs case on behalf of the teachers. "We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court."

Teachers in California pay approximately $650 a year in agency fees to the union. These fees support work on collective-bargaining agreements that enshrine policies like teacher tenure, "last in-first out" layoff rules, and school assignments based on seniority, not need. The plaintiff teachers object to the union's positions on these political issues and say being forced to fund them as a condition of employment in a public school is unconstitutional. Agency-fee payers also lose benefits like maternity leave and disability and professional-liability insurance.

A tie vote by the Supreme Court does not settle a legal question; it simply leaves the lower court opinion in place and reserves the legal question for a future case. In this case, the lower court (the Ninth Circuit Court of Appeals) was forced to rule against Friedrichs and the other teachers because they are challenging a previous Supreme Court decision and only the Supreme Court can overturn its own opinions.

"A union cannot claim to represent the interest of all workers if there is ongoing doubt about the constitutionality of its forcible collection of millions of dollars in dues," Pell said. "Either compulsory dues are an acceptable exception to the First Amendment or they are not. A full Court needs to decide this question and we expect this case will be re-heard when a new Justice is confirmed."